Chattisgarh High Court
Bhagwat Prasad Sahu And Ors vs Dilharan And Ors. 23 Wps/4115/2008 ... on 24 October, 2019
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Judgment reserved on 13-09-2019
Judgment delivered on 24-10-2019
FA No. 14 of 1998
1. Bhagwat Prasad Sahu aged about 58 years.
2. Ram Prasad Sahu, aged about 40 years.
3. Santosh Kumar Sahu, aged about 37 years.
No.1 to 3 all sons of Jhagru Sahu and residents of village
Ghutku,Tahsil Takhatpur, District Bilaspur MP (Now CG).
4. Janki Bai aged about 62 years wife of Gaya Prasad Sahu
(died & deleted ) through LRs.
4.A Gaya Prasad, aged about 78 years.
4.B. Ghasi Ram s/o. Gaya Prasad Sahu, aged about 35
years.
4.C. Parmeshwar s/o. Gaya Prasad Sahu aged about 26
years.
5. Jam Mati Bai alias Jammati Bai, aged about 51 years, wife
of Bhushan Lal Sahu, resident of village Jarve Hardi, Tahsil
Janjgir, Dist. Bilaspur (CG).
6. Madhuri Sahu, aged about 44 years, wife of Bodhram Sahu,
resident of Janjgir, Tahsil Janjgir, District Bilaspur (CG).
7. Keshari Bai, aged about 34 years, wife of Dinesh Kumar
Sahu, resident of village Patharra, (Near Kalmitar), Tahsil
Kota, District Bilaspur (CG).
---- Appellants/plaintiffs
Versus
1. Dilharan aged about 36 years son of Shri Ramadhar Sahu,
resident of village Ghutku, Tahsil Takhatpur, District Bilaspur
(MP) Now CG.
2. Narayan alias Mana Mandal, aged about 32 years s/o.
Mohanlal Kaushik, resident of Ghutku, Tahsil takhatpur,
District Bilaspur, CG.
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3. Laxmi Bai, aged about 30 years, wife of Lala Kaushik,
resident of village Daija, Tahsil Takhatpur, District Bilaspur
(CG).
4. Pannalal Verma, aged about 39 years, s/o. Ramji, Caste
Adholiya, resident of village Ghutku, Tahsil Takhatpur,
District Bilaspur (CG).
5. Ashwani Kumar, aged about 13 years son Dilharanlal Sahu,
resident of village Ghutku, Tahsil Takhatpur, Dist. Bilspur
(CG) Minor through guardian Adlitem, father Dilharan Lal
Sahu, aged about 36 years, s/o. Ramadhar Sahu, resident
of village Ghutku, Tahsil Takhatpur, District Bilaspur (CG).
6. Government of MP through the Collector, Bilaspur (CG).
---- Respondents/defendants.
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For appellant : Mr. H.B. Agrawal, Sr. Advocate with
Smt. Prabha Sharma, Advocate.
For respondent : Mr. Waquar Naiyar, Advocate.
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SB: Hon'ble Shri Justice Ram Prasanna Sharma
CAV JUDGMENT
1. Heard on application filed under Order 41 Rule 27 of the Code of Civil Procedure, 1908.
2. By this application, the appellants seek to file copy of the revenue record regarding property in question. As the documents are required to enable the court for ascertaining as to who was the original owner and how the property was mutated in the name of successor, therefore, application is allowed and documents are taken on record.
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3. This appeal is preferred under Section 96 of the Code of Civil Procedure, 1908 against the judgment/decree dated 19-9- 1997 passed by 7th Additional District Judge, Bilaspur (CG) in Civil Suit No. 1-A/1994 wherein the said court dismissed the suit filed by the appellants for declaration of title, possession and permanent injunction over the property of land bearing survey No. 298 area 0.51 decimal, 824 area 1.50 acres, 1562 area 0.40 decimal, 1577 area 0.82 decimal, 1579 area 0.65 decimal, 1624 area 0.50 decimal and 2547 area 0.69 decimal, total area 5.07 acres and two houses and one kitchen garden situated in same place.
4. The property in question was originally owned by Chhattoo Sahu who was father of Jhagru Sahu and Rikhiram. Both sons namely Jhagru Sahu and Rikhiram died during lifetime of their father Chhattoo Sahu. After death of Rikhiram, his two wives namely Kari Bai and Bundeliya Bai succeeded property. Said Bundeliya Bai alienated property in favour of Pyarelal on 15-6- 1955 against which suit was filed by Chhattoo Sahu and it is decided in that suit that Chhattoo Sahu's right of reversioner after death of Kari Bai and Bundeliya Bai, shall be maintained because on the date of execution of sale deed i.e., 15-6-1955 both Kari Bai and Bundeliya Bai have limited interest. As per appellants, said Pyarelal again executed sale deed in favour of 4 Kari Bai and Bundeliya Bai on 3-7-1964 to frustrate the decree passed in favour of Chhattoo Sahu. It is also pleaded on behalf of the appellants that sale deed executed by Kari Bai and Bundeliya Bai in favour of Mohanlal on 1-1-1965 and sale deed executed by Bundeliya Bai in favour of respondent Pannalal Verma and respondent Ashwani Kumar is also not valid. Respondent Narayan alias Mana Mandal is son of said Mohanlal in whose favour sale deed was executed. Again, a will was executed by Bundeliya Bai in favour of respondent Dilharan is also not valid.
5. Learned counsel for the appellants would submit as under:
I) Sale deed executed by Pyarelal in favour of Kari Bai and Budeliya Bai is not valid because same is executed to frustrate the decree passed by the court of Civil Judge, in Civil Suit No. 32-A/1955 vide judgment dated 17-9-1956 which was affirmed by High Court of Madhya Pradesh in Second Appeal No.343 of 1957 vide judgment dated 11-9-1959, therefore, no title is passed in favour of Bundeliya Bai and Kari Bai.
ii) After execution of sale deed Pyarelal was 5 in possession of property and when Hindu Succession Act, 1956 (for short, "the Act, 1956") came into force, on that date Bundeliya Bai and Kari Bai were not in possession of the land in question, therefore, the Act, 1956 has no application in the present case.
iii) Sale deed executed by Budeliya Bai and Kari Bai is not binding on the right of Chhattoo Sahu, therefore, appellants who are reversioners and successors of Chhattoo Sahu, are entitled for the property in question and again they are entitled for possession.
Reliance has been placed in the matter of Eramma vs. Verrupanna and others, reported in AIR 1966 SC 1879.
6. On the other hand, learned counsel for the respondents would submit as under.
I) Bundeliya Bai and Kari Bai were in 6 possession of the land in question on 17- 6-1956 and after coming into force of the Act, 1956 both were in possession of the property as full owners and not limited owners, therefore, they had all the right to alienate the property by way of sale deed and by way of a will.
ii) Will is executed by Bundeliya Bai in favour of Dilharan on 5-2-1995 which is valid document as per evidence adduced before the trial curt. Again, sale deed are also valid after the Act, 1956.
ii) Earlier the suit was filed under the old Act i.e., Hindu Women's Right to Property Act, 1937 in which both Bundeliya Bai and Kari Bai have limited interest but after coming into force of the Act, 1956, they are not limited owners of the property in question and their title was perfect, therefore, finding of the trial court is not liable to be interfered with while invoking jurisdiction of the appeal.
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7. I have heard learned counsel for the parties and perused the record of the court below including the judgment and decree.
8. The core issue for consideration of this court is whether Bundeliya Bai and Kari Bai were in possession of the property on the date of coming into force of the Act, 1956 i.e., 17-6-1956. Though it is stated that Kari Bai and Bundeliya Bai were not in possession of the property after execution of sale deed in favour of Pyarelal, but from the evidence of appellant Bhagwat Prasad Sahu (PW/1) (para 10) it is clear that property in question was in possession of Kari Bai, Bundeliya Bai and Pyarelal even after sale. He further admitted that Kari Bai and Bundeliya Bai were in possession of the property and he purchased property from Bundeliya Bai (para 15).
9. Heeralal (PW/2) also deposed before the trial court that Kari Bai and Bundeliya Bai were in possession of the property in question because Pyarelal is living with them and they were maintaining said Pyarelal from his child-hood. From the evidence of appellants side it is clear that Kari Bai and Bundeliya Bai were in possession of the property even after execution of sale deed on the date of coming into force of the Act, 1956. When both were in possession of the property, they became full owner of the property as per Section 14(i) of the Act, 1956. It appears that Kari 8 Bai and Bundeliya Bai were guardians of Pyarelal that is why they were in possession of the property with Pyarelal and Pyarelal again executed sale deed in favour of Kari Bai and Bundeliya Bai for the land in question. If Pyarelal would not have executed sale deed in their favour, even then they were in possession of the property in question that is why Mohanlal, respondents No.4 and 5 have purchased property from them. Appellant Bhagwat Prasad also purchased property from Bundeliya Bai, therefore, it is clear that property was possessed by Kari Bai and Bundeliya Bai and they alienated property as full owner. Again Will is executed in favour of Dilharan and as per evidence of Dilharan (DW/1) and attesting witnesses Sanjay Sharma (DW/2) and Devideen (DW/3) it is established that Bundeliya Bai executed a will in favour of Dilharan and it is clear from the record that Dilharan is in possession of property in question. There is no law which is preventing Pyarelal from executing sale deed in favour of Kari Bai and Bundeliya Bai, therefore, looking to the entire evidence, it is clear that Kari Bai and Bundeliya Bai were real owner of the property in question and they had all the right to alienate the same.
10. After re-assessing the entire evidence, argument advanced on behalf of the appellants is not sustainable. Finding of the trial court is based on oral and documentary evidence adduced by 9 both sides and same is not based on any irrelevant or extraneous material. After re-assessing the evidence, this court has no reason to substitute contrary finding. The appeal is liable to be dismissed. Case law cited by learned counsel for the appellants does not help as the same is very distinguishable from the facts of the present case.
11. Accordingly, decree is passed in favour of respondents and against the appellants as under:
(i) The appeal is dismissed with cost.
(ii) Parties to bear their own costs.
(iii) Pleader's fee., if certified, be calculated
as per Schedule or as per certificate
whichever is less.
(iv) A decree be drawn up accordingly.
Sd/-
(Ram Prasanna Sharma)
JUDGE
Raju